G. MEHROTRA, J. : This is an appeal under Sec. 116-A of the Representation of the People Act, hereinafter called the Act, against the order of Mr. S. K. Dutta, Mem­ber, Election Tribunal, setting aside the election of Sri Biswanath Upadhaya the appellant from the Patherkandi constituency of the Assam Legislative Assembly. (2) On 25-2-1957, the General Election of Assam Legislative Assembly in the Patherkandi Assembly constituency was held. The appellant Sri Biswanath Upadhaya, who was respondent No.- 1 before the Tribunal, Sri Debendra Singh, who was respondent No. 4 before the Tribunal and Sri Baidyanath Mukherjee respondent No. 6 before the Tribunal, hereinafter called the appellant, respondent No. 4 and respondent No. 6 were the rival candidates for the general seat. Sri Gopegh Namasudra, respondent No. 2 be­fore the Tribunal. Sri Ramesh Chandra Das Ohoudhury respondent No. 3 and Sri Haramohan Roy, respondent No. 5, hereinafter called respon­dents 2, 3 and 5 respectively were the rival candi­dates for the reserved seat in the said constitu­ency. It should be pointed out that the Pather­kandi constituency is a double member constitu­ency. Sri Biswanath Upadhaya secured 28,965 votes; Sri Gopesh Namasudra 22,768 votes; Sri Ramesh Chandra Das Choudhury 9,523 votes; Sri Debendra Singh 2,335 votes; Sri Haramohan Ray 19,850 votes and respondent No. 6, Sri Baidyanath Mukherjee secured 22,462 votes. The appellant, Sri Biswanath Upadhaya and Gopesh Namasudra were thus duly declared elected for the general and reserved seats respectively. Sri Biswanath Upadhaya secured 28,965 votes; Sri Gopesh Namasudra 22,768 votes; Sri Ramesh Chandra Das Choudhury 9,523 votes; Sri Debendra Singh 2,335 votes; Sri Haramohan Ray 19,850 votes and respondent No. 6, Sri Baidyanath Mukherjee secured 22,462 votes. The appellant, Sri Biswanath Upadhaya and Gopesh Namasudra were thus duly declared elected for the general and reserved seats respectively. Sri Haralal Das hereinafter called the petitioner, who claims to be a bona fide inhabitant of Nagendra-nagar and was duly enrolled as an elector under serial No. 26, block No. 7 R, part No. 45-P of Pather­kandi constituency of the Assam Legislative Assembly brought a petition challenging the election of the returned candidates inter alia on the grounds (1) that the results of the election have been materially affected by the improper acceptance of the nomi­nation of Sri Haramohan Ray, as his age in the elec­toral roll on 29-1-1957, the last date for filing of the nomination papers has been 21 years and thus he was not qualified under Art. 173 of the Consti­tution of India, to be nominated as a candidate; (2) that Sri Gopesh Namasudra and Sri Haramohan Ray resorted to undue influence over the Nama­sudra community of Patherkandi constituency, raising Namasudra Jat Bhai cry and thus the voters could not get an opportunity to exercise their franchise freely and independently; (3) Sri Biswanath Upa­dhaya belonged to the priest class of the Hindustani community of the area and the said respondent's workers appealed to the electors in the Patherkandi Acembly constituency and compelled them to swear by their sacred thread to cast their votes in favour of the appellant. The labour class people were induced to believe that they would incur Divine displeasure and spitual censure in case they would not cast then votes in favour of the appellant; (4) that appellant^ together with his agents and workers used and uti­lised the Tricolour Flag of the Congress in his elec­tion campaign describing that he had been selected by Shri Jawaharlal Nehru for the said constituency to represent the progressive party of the United Front Group and by this misrepresentation he and his adherents misled the majority of the electors composed of the illiterate section of the people of the locality to get their votes cast in his favour. The appellant also provided vehicular con­veyance to the electors and entertained them with tea and other eatables, contrary to law. The appellant also provided vehicular con­veyance to the electors and entertained them with tea and other eatables, contrary to law. The Res­pondents Nos. 1 and 2 i.e., the appellant, Sri Biswa­nath Upadhaya and Sri Gopesh Namasudra and other members of the United Front with whom they were in alliance and active collusion for the election pur­pose had published false stories and allegations in their party organ 'Jagaran' which was distributed on 24-2-1957, and on 25-2-1957, knowing them to. be false against the respondent No. 6, Sri Baidya­nath Mukherjee and that he would not succeed and get a single vote in the election and distributed copies of this publication amongst the electors of all the Polling Centres of the Patherkandi Assembly constituency on the date of the poll and by this false propaganda they could secure the votes of a large number of electors to be cast in their favour, (3) Some other points were also taken; but it is not necessary to refer to them as they were neither pressed before the Tribunal nor the Tribu­nal has based its decision on these points and they have not been urged before us also. A preliminary point was taken by the respondent-appellant before the Tribunal about the maintainability of the peti­tion. It was urged that in the Challan by which the security was deposited in the treasury did not mention that the amount of security was deposited in the name of the Election Commission and thus there was non-compliance with the provisions of Sec. 117 of the Representation of the People Act and the petition was liable to be dismissed under section 90 (3) of the Act. The Tribunal did not accept this contention and it has been reiterated by the appellant before us. Section 90 (3) of the Act reads as follows : "The Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, S. 82 or .S. 117 notwithstanding that it has been dismissed by the Election Commission under sec­tion 85." When the petition was sent to the Election Com­mission on 8-4-1957, on 23-4-1957, notice was issued to the petitioner to show cause why the petition should not be summarily dismissed as the Treasury Receipt received with the petition did not mention specifically that the amount had been deposited in favour of the Secretary to the Election Commission. No cause was shown. No cause was shown. The Chief Election Commissioner by his order dated 6-5-1957, sent the peti­tion to the Tribunal for determination and left open this question for decision by the Tribunal. It was •observed by the Commission as follows : "The further question as to whether this de­fect should be treated as fatal to the election peti­tion may be left for the Tribunal to decide after 'hearing both the 'parties." The point was again raised before the Tribunal upon the Tribunal by its elaborate order dated 4-7-1937, repelled this contention and held that the [provisions of S. 117 have been substantially complied with and the petition was not liable to be rejected, under Sec. 90 (3). Section 117 of the Act reads -as follows : "The petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of one, thousand rupees has been made by him after in a Government Treasury or in the Reserve Bank of India, in favour of the Secretary to the Election Commission as security for the costs of the petition," Section 90 (3) is no doubt mandatory and failure to comply with section 117 will make the petition liable to be rejected. But the real question is whether the present case, it can be said that the provisions of S. 117 have not been complied with. Admittedly, in the Treasury Chalan, all the columns had been properly filled up. The column of 'particulars' did not contain the "words "in favour of the Secretary to the Election Commission of India." In the column 'heads of deposit,' it is shown to have been deposited for the election petition. It is also clearly mentioned in She receipt that the amount in question was a de­posit of security for election petition in Patherkandi Constituency L. A. N (4). The amount was thus available as security for costs. This fact distinguishes this case from the case of Sudhansu Sekhar Panda v. Natendra Nath Das, 82 Cal W N 325 : ( AIR 1958 Cal 322 ) (A) where similar objection was upheld. We think there was substantial compliance with the provisions of section 117 of the R. P. Act in this case, and there is no substance in the contention raised by the appwllant. We think there was substantial compliance with the provisions of section 117 of the R. P. Act in this case, and there is no substance in the contention raised by the appwllant. As to the other points raised regarding the power of the Tribunal to allow amendments, we are not inclined to accept the argument of the appel­lant that in the present case there was any such error committed by the Tribunal. It is said that the copy of the Jagaran was not supplied along with the petition and that the corrupt practice was not felly described. Section 83 provides as follows : "(1) An election petition (a) shall contain a concise "statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such cor­rupt practice and the date and place of the commission of each such practice; and (o) shall be signed 'by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." Section 90 (5) of the Act provides that: "The Tribunal may, upon such terms as to costs and otherwise as it may deem fit, allow the parti­culars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition." It wag urged that para (f) which contains the allegations about the corrupt practice under sec­tion 123 (4) does not specifically mention the dis­tribution of the paper by the appellant. It only states that the respondents Nos. 1 and 2 had pub­lished false stories and allegations in their party-organ Jagaran which was distributed on 24-2-1957 and 25-2-1957. About the distribution by the ap­pellant all that is stated, relates to the distribution on the day of polling and not a day prior to the polling. It only states that the respondents Nos. 1 and 2 had pub­lished false stories and allegations in their party-organ Jagaran which was distributed on 24-2-1957 and 25-2-1957. About the distribution by the ap­pellant all that is stated, relates to the distribution on the day of polling and not a day prior to the polling. It is also said that the copy of the Jagaran which was permitted to be filed and made an anne­xure to the petition was not verified by the appel­lant. We do not think that the permission granted1 to file the copy of the Jagaran in any manner introduced any new head of corrupt practice. It only amounted to supply of more and better particulars. The want of such particulars in the petition could be no ground for throwing out the petition. This question really is immaterial at this stage because the parties have led evidence and the Tribunal has considered the case on merits. This court at this stage will not reject the petition on the ground that the Tribunal was wrong in allowing the paper to be brought on the record. It is then contended that the petitioner should not have been allowed to lead evidence on the ques­tion of distribution by the appellant on the day pre­vious to the poll. An issue was framed to that effect, the parties led evidence on that issue, none of the parties were misled on that account and -were not prejudiced in producing evidence. The I question therefore at this stage is one only of ' academic interest. There is, therefore, no substance in this preliminary objection as well. (4) Coming to the merits of the case, the Tribunal found that the nomination of respondent No. 5 Sri Haramohan Ray was wrongfully accepted inasmuch as he did not attain the age of 25 years on the date of the filing of the nomination papers nor even when the results of the election were announced. But he held that the results of the election, so far it concerned the returned candidates were not materially affected by this wrongful accep­tance and thus the election was not liable to be set aside. But he held that the results of the election, so far it concerned the returned candidates were not materially affected by this wrongful accep­tance and thus the election was not liable to be set aside. As regards the allegation that Sri Gopesh Nama-sudra and Sri Haramohan Ray combined together and influenced the voters to cast their votes on com­munal consideration, the contention has not been accepted by the Tribunal and does not seem to have been seriously pressed before him. Ho has also repelled the contention of the petitioner that the appellant canvassed on communal considerations and asked for votes on the threat of excommunication and that he asked the voters to swear by their sacred thread to cast their votes in his favour. He has also not accepted the case of bribery against the appellant. The case that the appellant provided vehicular conveyances to the voters has also not been accepted by the Tribunal. The main grounds on which he has set aside the election of the appellant are two. Firstly that the appellant to­gether with his agents and workers used and uti­lised the Tricolour Flag of the Congress in his elec­tion campaign and secondly that in the Jagaran, which is the party organ of the appellant, certain publication was made on the eve of the election and the copies of the paper were distributed by the appellant as well as by his other workers and agents. This publication constitutes a corrupt practice within the meaning of S. 123 (4) of the Represen­tation of the People Act. The finding of the Tri­bunal on the use of flag is in the following terms : "But I am satisfied that Upadhaya used the Congress flag in his election campaign. The use of the designation 'Congress' by a group of people who left the Congress is bad enough but the use of the Congress flag is worse." This, according to the Tribunal, constitutes undue influence. The finding of the Tribunal holding the use of the Congress flag as an undue influence is in the following terms : "Thus, Upadhaya apparently could see that the tea garden labourers were inclined to support the Congress. Hence the reason for using a Congress flag is palpable. The finding of the Tribunal holding the use of the Congress flag as an undue influence is in the following terms : "Thus, Upadhaya apparently could see that the tea garden labourers were inclined to support the Congress. Hence the reason for using a Congress flag is palpable. There was undoubtedly an attempt on the part of respondent Upadhaya to mislead the tea garden labour by using the Congress flag, and to make them think that he was also a Con­gress man. .......................... I therefore hold that respondent No. 1 Upadhaya used the Con­gress flag for his election purpose and thereby com­mitted the offence of 'undue influence' within the meaning of section 123 of the R. P. Act/' The Tribunal did not accept the petitioner's allega­tion that the appellant said that he had been select­ed by Sri Jawaharlal Nehru from the said consti­tuency to represent the United Front Group. As regards the publication in Jagaran, the Tribunal held that the allegations contained in the impugned issue of Jagaran dated 23-3-1957 constituted a corrupt prac­tice and the appellant committed an offence under S. 123 of the R. P. Act by giving it publicity. (5) Mainly two issues, issues Nos. 4 & 5 have been found against the appellant by the Tribunal and his election has been set aside on these find­ings. Besides the several preliminary objections raised by the counsel for the appellant, he strenuous­ly contended that the findings of the Tribunal on these two issues are erroneous both on facts and on questions of law. Issue No. 4 reads as follows : "Did the respondent No. 1 or his agent or any other person resort to corrupt practice by using the Congress flag and giving out that he was selected by Pandit Jawaharlal Nehru for the said constituency as alleged in sub-para (e) of para 5 and if so, is the election liable to be set aside for the said cor­rupt practice.'' The allegation regarding these issues are set out in para 5 (e) and are as follows : "That the Respondent No. 1 together with his agents and workers used and utilised the Tri­colour flag of the Congress in his election campaign describing that the Respondent No. 1 had been select­ed by Sri Jawaharlal Nehru for the said constituency to represent the Progressive Party of the United Front Group and by this mis-representation he and. his adherents misled the majority of the electors. composed of the illiterate section of the people, of; the locality to get their votes cast in his favour, and influencing them to do so, the Respondent No. 1 and his followers provided vehicular conveyances to. the electors to and from the polling stations, at EM-lavcherra, Baraigram, Nanai Bazar, Achimganj and. Patherkandi on the day of the poll and entertained the electors with tea and biscuits contrary to law. This paragraph contains four allegations. Firstly-that the appellant utilised the tricolour flag of the Congress in his election campaign and secondly he described himself to have been selected by Sri Nehru, for the said constituency, to represent the Progressive. Party of the United Front Group. Thirdly that; he provided the electors with vehicular conveyances and fourthly that on the date of poll, he entertained the electors with tea and biscuits. So far as the allegations Nos.. 2, 3 and 4 ai». concerned, the finding of the Tribunal is in favour of the appellant. The Tribunal has, in our opi­nion, rightly held that the fact that the petitioners described himself as having been selected by Sri Jawaharlal Nehru and on that representation secured^ votes has not been established by the materials on the record. The finding of the Tribunal that there is no evidence to prove that the appellant Provided con­veyances to the electors and entertained them, with tea and biscuits is also correct. The only allegation, therefore which we have got to examine is the us» of the tricolour flag of the Congress by the appel­lant in his car during the election campaign^ (His Lordship discussed the evidence on the point and continued :} (6-16) From the evidence it is clear that the Progressive Party, to which the appellant belonged. contested the election in the last Local'. Board election also and it used the flag similar to that which, was used by Upadhaya in the present election. There-was much similarity between the Congress flag and the flag of the Progressive Party. The only difference is that there is the emblem, of Charkha in the middle of the Congress that while in the Progressive Party's flag, there is the figure of the pigeon with the two words 'Santf and 'Maitri' in the middle. All the witnesses saw the flag from a distance ranging between 5 cubits ta 20 cubits. The only difference is that there is the emblem, of Charkha in the middle of the Congress that while in the Progressive Party's flag, there is the figure of the pigeon with the two words 'Santf and 'Maitri' in the middle. All the witnesses saw the flag from a distance ranging between 5 cubits ta 20 cubits. They only saw the flag on one or two occasions. It is also significant to note that on the occasion when they saw Upadhaya using the flag and giving out to the people that he was a Congress-man as he was using the Congress flag, Upadhaya is alsa said to have sweared by touching his sacred thread and said that he went to Delhi where Sri Jawaharlal Nehru has nominated him as a Congress candidate-. This statement has not been accepted by the Tribunal. It is therefore difficult to believe the statement of the witnesses that they actually saw the Congress flag on the bonnet of the car of the appellant, and that he gave out to the people that he was a Congress Candidate by showing this flag. Most of the wit­nesses saw it in the dark time and in company of large number of people. It is difficult to believe that Upadhaya, who had given out that his symbol was Elephant and when the Congress symbol was very well known to the electors, would have at all expected any support from the public by merely using the Congress flag. It is true that the fact that a candidate suc­ceeds in misleading the voters or not is not neces­sary to establish undue influence. Undue influence consists in the attempt on the part of the candidate. But in order to judge the truth of the statement of these witnesses, the probabilities have got to be examined. In order to estimate the testimony of the witnesses, it is relevant to consider whether the conduct attributed to the cand'dale was consistent With the ordinary course of human conduct. It cannot be believed that Upadhaya as a reason­able and prudent man would have ever believed that lie would succeed in getting votes by putting the Congress flag in his car. It cannot be believed that Upadhaya as a reason­able and prudent man would have ever believed that lie would succeed in getting votes by putting the Congress flag in his car. The statements of the witnesses that they saw the Congress flag in Upadhaya's car cannot be accepted as it attributes a course of conduct to Upadhaya which as a reason­able man he was not expected to adopt. It may be that the witnesses were misled by the similarity of the two flags, and therefore they thought that Upadhaya was using a Congress flag. But it is clear from the evidence on record that Upadhaya's flag was different from that of the Con­gress and there is no reason for him to have used the Congress flag in his car. After careful consi­deration of the evidence, we are of opinion that it is not established by the evidence on the record that Sri Upadhaya used the Congress flag and that he utilised the congress flag for canvassing purposes. Having come to this finding ordinarily it would have been unnecessary for us to examine the law on the point and to see that even if the fact that Upadhaya used Congress flag in his car be accepted, whether that would amount to undue in­fluence or not. As the point has been canvassed, we would like to give our opinion and examine the findings of the Tribunal on this point. As the point has been canvassed, we would like to give our opinion and examine the findings of the Tribunal on this point. (17) Section 123 (2) of the Representation of the People Act defines undue influence as follows : "Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person, with the free exercise of any electoral right : Provided that (a) without prejudice to the gene­rality of the provisions of this clause any such person as is referred to therein who (i) threatens any candidate, or any elector, or any person in whom « candidate, or an elector is interested, with injury or any kind including social (Ostracism and excom­munication or expulsion from any caste or communi­ty; or (ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in Whom he % interested, will become or will be rendered an object of divine displeasure or spiritual Censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; (b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause." (18) The definition of undue influence under section 123 is in very general terms and any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the free exercise of any electoral right will constitute an undue influence. The proviso has specified certain acts of commissions which are regarded as calculating to interfere with the free exercise of an electoral right, What is a corrupt practice is undue influence and not mere influence. If it is an abuse of in­fluence, it will constitute an undue influence. The contention of the respondent before the Tribunal which has been accepted by the Tribunal was that the use of the Congress flag by Upadhaya, when in fact he did not belong to the Congress Party, was with the intention to deceive the electors and thus influence them in casting their votes. The contention of the respondent before the Tribunal which has been accepted by the Tribunal was that the use of the Congress flag by Upadhaya, when in fact he did not belong to the Congress Party, was with the intention to deceive the electors and thus influence them in casting their votes. No inference can be drawn that Upadhaya in­tended to deceive the electors by the mere use of the Congress flag in the car in which he was moving about. An attempt was therefore made by the res­pondent to lead evidence to the effect that at places Upadhaya told the electors that he was a Congress man which was evidenced from the fact that he was using the Congress flag. We have already discussed the evidence on that point arid it is not possible to accept the testimony of the witnesses on that point. That being so, even assuming for the sake of argument that Sri Upadhayai was moving about in a car which had a Congress flag on its bonnet, that by itself does not lead to an inference that Sri Upadhaya intended to deceive the electors. Moreover, no such intention, much less an at­tempt on his part, can be inferred when it was clear­ly given out that his symbol was elephant and that of the Congress party was two bullocks with an yoke on. A distinction is to be drawn between the assertion by a candidate that he holds the congress views as any other candidate and the assertion that he is a Congress nominee and has been set up by the Congress parliamentary party. The putting up of a Congress flag on the car can as well be consistent with the position of giving out to the electors that he had ideologically the same views as that of the congressmen. But any man with little common sense cannot expect that the voters, by merely seeing the Congress flag in one's car would go and vote for a candidate having a symbol which admittedly is not the symbol of the party whose nominee they intended to vote for. Clause (b) of Sec. 123 (2) clearly lays down that a mere exercise of a legal right without any intention to interfere with an electoral right shall not be deemed to be interference within the mean­ing of this clause. Clause (b) of Sec. 123 (2) clearly lays down that a mere exercise of a legal right without any intention to interfere with an electoral right shall not be deemed to be interference within the mean­ing of this clause. It cannot be contended that) the use of the flag was illegal. It can also not be said that the use of the flag was done with the intention to interfere with the electoral right of any person and as such even if it be accepted that Sri Upadhaya was moving in the jeep which had a Congress flag, it will not by itself constitute an undue influence in the circumstances of the present case. The Tribunal seems to have been influenced with some idea of ethical standards to be maintained by a candidate. The Tribunal has remarked as follows : 'But I am satisfied that Upadhaya used the Congress flag in his election campaign. The use Of the designation 'Congress' by a group of people who left the Congress is bad but the use of the Congress flag is worse." At another place, he has remarked : 'Thus, Upadhaya apparently could see that the tea garden labourers were inclined to support the Congress. Hence the reason for using a Congress flag is palpable. There was undoubtedly an attempt on the part of respondent Upadhaya to mislead the tea garden labourers by using the Congress flag and to make them think that he was also a Congress-man." At another place he observed that Sri Upadhaya resorted to undue influence. If the interpretation put by the Tribunal on the provisions of Section 123 (2) is accepted, it will be difficult even to ex­press one's own legitimate views. As we have al­ready quoted the remarks of the Tribunal, in fact) he was of the opinion ;hat persons who had left the Congress had no right or business to call them­selves Congress-men and any attempt on their party to let the voters believe that they were Congress­men is illegal. We do not think that the proposition can be put so broadly. Congress-man is not a term of art, it may be open to an individual to say that he holds the views held by the Congress-men and thus he is also a Congress-man in principle. We do not think that the proposition can be put so broadly. Congress-man is not a term of art, it may be open to an individual to say that he holds the views held by the Congress-men and thus he is also a Congress-man in principle. If a person who puts on Gandhi-cap and Khaddar cloth goes about and says that ideologically he holds the same views as a Congress-man and is therefore a Congress-man in principle, which will be manifest from his dress, it will, according to the Tribunal's finding, be an undue influence. We cannot accept such an interpretation of Sec. .123 (2). There was no interference with the free exercise of the voters' electoral rights. By this re­presentation, what Upadhaya might have thought was that the labourers were inclined to vote for per­sons who held certain views and not necessarily who 'belonged to certain party, and if it wag impressed on them that he holds similar views, they might cast their votes in his favour. Such conduct will only be supporting the exer­cise of their electoral rights and will not in any manner be regarded as an interference with the free exercise of their electoral rights. (19) The next issue found against the appellant by the Tribunal is issue No. 5 and it reads as follows: "Does the publication in 'Jagaran' dated 23-2-1957, as alleged in para 5 (f) of the election peti­tion constitute corrupt practice as defined in sec­tion 123 of the R. P. Act, 1951, and if so, is the election liable to be set aside for such corrupt practice." The allegations in the petition regarding this issue are to be found in para 5 (f) of the petition and are as follows : "That respondents Nos. 1 and 2 with other mem­bers of the United Front with whom they were in alliance and active collusion for the election Pur­pose had published false stories and allegations in their party organ 'Jagaran" which was distributed on 24-2-1957 and on 25-2-1957, knowing them to be false, against the respondent No. 6 Baidyanath Mukherjee that he would not succeed and get a single vote in the election and distributed several copies of this publication amongst the electors of all the polling centres of the Patherkandi Assembly constituency on the date of the poll and by this false propaganda they could secure the votes of a large number of electors to be cast in their favour in preference to respondent No. 6." In short, the facts alleged are that in the special issue of Jagaran which was published on 23-2-1957, certain allegations against the personal conduct of the opposite party No. 6 were made which were false and were not believed to be true by the publisher. This issue of Jagaran was distributed both by the workers of Sri Upadhaya and Upadhaya himself and thus the publication constitutes a corrupt prac­tice within the meaning of Sec. 123 (4) of the R. P. Act. It has also been found by the Tribunal that Jagaran was a party organ of the Leftists and as such the paper could be regarded as an agent of the candidate. The finding of the Tribunal is that the state­ment in the issue of Jagaran that Sri Baidyanath Mukherjee was not likely to get a single vole in certain areas and his defeat was sure, broke the hearts of many voters who intended to support Sri Mukharjee and thus this writing was a bluff which was intended to mislead the voters and dissuade them from voting in favour of Sri Mukherjee and it had constituted an undue influence under section 123 (2) of the R. P. Act, 1951. He then holds, dealing with the evidence of the Editor that: "there was not only culpable negligence on his part in not making proper inquiries before Pub­lishing such a serious allegation, but his s'atement that he wrote it even after denial of the allegation by the Special Officer Manmatha Choudhury also shows that the Editor was up to playing dirty tricks deliberately. The allegation has no legs to stand and it is palpably false. The allegation has no legs to stand and it is palpably false. No reasonable man could believe it to be true in the circumstances narrated by the editor." Commenting on his statement at another place the Tribunal observed that: "he has no hesitation to tell a falsehood to pervert the truth. The brazen-faced way in which the editor who is an educated man, can disregard truth can be seen when he says that he did not canvass for Upadhaya in the article and sticks to his assertion that his intention was not that the electors should not vote for Baidyanafh Mukherjee," Ultimately however, his finding is that: "the allegations are false and the editor must have known them to be false. The impugned arti­cle was published in a special issue of the 'Jagaran' and it is in .evidence that it was widely c rculated free of charge. Such allegations were reasonably calculated to prejudice the prospects of the election of Baidyanath Mukherjee. Each of these allegations and stories related to the personal character and conduct of the candidate and is quite explicit. Thus allegation (a) makes out Baidyanath Mukherjee as a corrupt and unscru­pulous person who adopts illegal means in order to obtain votes, allegation (b) has reference to his past scandals, allegation (o) throws reflection on his integrity, allegation (d) accuses him of creating class hatred........................... The article as a whole is highly scurrilous from top to bottom. It has the effect of conveying to the voters that Baidaiiath Mukherjee was not really a man of such character as they would look for. ................. ..........I hold that each of the allegations i.e., (a) to (h) comes within the mischief of sub-s. (4) of Sec. 123 of the R. P. Act. It has the effect of conveying to the voters that Baidaiiath Mukherjee was not really a man of such character as they would look for. ................. ..........I hold that each of the allegations i.e., (a) to (h) comes within the mischief of sub-s. (4) of Sec. 123 of the R. P. Act. It is sufficient for setting aside the election if the first para constitutes undue influence or any one of the allegations is hit by sub-s. (4) of Sec. 123 of the R. P. Act, provided the corrupt practice is proved to have been committed by the returned candidate or his election agent or by any other per­son with the consent of the returned candidate or his election agent." Then dealing with the question of consent, he has come to the finding that the article of Jagaran was published with the consent of Upadhaya and that it has also been proved that he himself distributed copies of Jagaran containing the impugned article. The Jagaran was the agent of respondent Upa-dhaya in the election and the burden of proving of having or not having the consent will then lie on Upadhaya. In order to appreciate the points and the arguments advanced by the parties on this issue, it will be necessary to refer to some of~ the other provisions of the R. P. Act. Section 123 (4) reads as follows : "The following shall be deemed to be corrupt practices for the purposes of this Act - (4). The pub­lication by a candidate or his agent or by any other person, of any statement of face which is false, and which he either believes to be false or does not believe to be true, in relation to the persona] charac­ter or conduct of any candidate, or in relation to the candidature, or withdrawal!, or retirement from contest, of any candidate, being a statement reason­ably calculated to prejudice the prospect of that? candidate's election." (20) The necessary facts to be established be­fore the provisions of Sec. 123 (4) are attracted are (1) that the publication must be by a candidate or by his agent or by any person, (2) it must be of any statement of fact which is false and which is believed to be false or does not believe to be true, \3) it must be in relation to the personal character or conduct of any candidate and (4) the statement must reasonably be calculated to prejudice the pros­pect of that candidate's election. If these ingredients are established a publica­tion will be a corrupt practice as defined under sec­tion 123 (4). The explanation (1) attached to the section reads as follows : "In this section the expression 'agent' includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate." Sec. 123 (4) makes a publication by a candidate or his agent or by any other person a corrupt practice. In clause (4) the word 'agent' will have to be construed in the light of the definition in the explanation. Thus if the publication has been done by any person who has acted as an agent in connection with the election, with the consent of the candidate it will be regarded as a publication by the agent of the candidate. If a person acts as an agent in the election I with the consent of a candidate, he becomes his agent for the purpose of this section although he may not be an election agent or a polling agent. In order to' constitute the agency under this section, I it is therefore essential that a person must be proved to have acted as an agent in connection with the 1 election with the consent of the candidate. In order to' constitute the agency under this section, I it is therefore essential that a person must be proved to have acted as an agent in connection with the 1 election with the consent of the candidate. Section 100 of the R. P. Act, so far as it is material for this cause is as follows : "Subject to the provisions of sub-s. (2), if the Tribunal is of opinion (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the con­sent of a returned candidate or his election agent; then the Tribunal shall declare the election of the returned candidate to be void." Reading S. 100 and S. 123 together, it will appear that if a person acts in connection with election as , an agent with the consent of the candidate, he will be deemed to be an agent for the purposes of S. 123.1 The result will be that any publication done by 1 such a person will constitute a corrupt practice. But ? before the petitioner could get any relief under section 100, he is not only to prove that a corrupt practice has been committed by any person; but it has been done with the consent of the returned candidate.; (21) It is essential therefore to examine whe­ther the materials on the record establish the con­sent, express or implied of the appellant. It is' true that consent is to be inferred from the cir­cumstances and it may be direct or indirect. But consent is a question of fact which will have to> be established by the petitioner before he gets a relief under S. 100, of the R. P. Act. The Tribunal, to our mind, has approached this question of consent from an incorrect stand-point. The premise on which the entire finding of the Tribunal is based can be gathered from the follow­ing observation : "The essential constituent of consent is know­ledge. If it is proved that the returned candidate had knowledge of the article, it is up to him to prove the circumstances under which he did not re­pudiate it as it concerned him. The premise on which the entire finding of the Tribunal is based can be gathered from the follow­ing observation : "The essential constituent of consent is know­ledge. If it is proved that the returned candidate had knowledge of the article, it is up to him to prove the circumstances under which he did not re­pudiate it as it concerned him. If he cannot do so, there arises a presumption against h m. But far from proving any such fact, the returned can­didate for the general seat Respondent No. 1 con­tends that he has not got any knowledge about the impugned article even on the day of deposing." The error into which the Tribunal seems to have fallen is that the knowledge of the contents of the publication is no ground for assuming knowledge of the fact that such an article was going to be pub­lished in the paper. If it could have been established from the circumstances that the petitioner has know­ledge of the fact that such an article was going to be published in the paper and that the article contained certain imputations against the personal conduct of a candidate and if he did not take any steps to stop publication, his consent to the publica­tion may be inferred. But from the fact, even assuming that it has I been proved, that he had knowledge of the contents subsequent to its publication, no duty is cast on him to go and publish some repudiation of the allega­tions contained in the publication. The consent, so as to make the act of a third party as the act of the candidate should be in respect of the act of the third party; the knowledge which might have legitimately led to the inference of consent would be the knowledge of the fact that it was going to I be published. Any subsequent knowledge of the contents of I the publication cannot be relevant for the purpose of determining the consent of the candidate prior to the publication. The other reasoning of the Tribunal is that because the appellant is not making the true statement when he says that he did not know of the contents of the impugned article even on the day of making his statement before the Tri­bunal, a presumption of his consent for the Publi­cation can be inferred from his conduct. This is not a correct reasoning. This is not a correct reasoning. He further infers knowledge and consent of the appellant from the fact that some of the allegations made in the impugned article are mentioned in the written statement. Much comment has been made on the statements of Sri Upadhaya. Even assuming that the comments are justified, that will only jus­tify the Court not to place any reliance on his testi­mony. But his conduct or demeanour before the Tribunal making a statement, is no guide to the question of consent. The other point argued by the counsel for the respondent is that the editor of Jagaran acted as an agent in connection with the appellant's elec­tion with his implied consent and therefore any pub­lication by him will be deemed to be the act of the appellant and in any case his consent to such an act can be presumed. We shall examine this con­tention later. Mainly however, the circumstances which have been placed before us by the counsel for the res­pondent for coming to the conclusion that there was consent of the appellant to the publication are as follows: (1) That Jagaran was a paper which had close connection with the Leftists and started pub­lication during the election with the main purpose ol propagating the cause of the Leftists' candidates. (2) The paper was in fact canvassing for the Leftist Group and it can be called the organ of the Lef­tist Party. (3) All the anti-Congress forces had combined and they had made a common cause against the Congress candidates & were carrying on a joint propaganda. The workers for one of the leftist candidate were working for the other. (4) The office of the leftist party was located in the same building in which the Shree Press was situa­ted and at which the paper was printed. (5) The paper was widely circulated. (6) The article which appeared in the special issue was distributed free which necessarily implies that it must have been financed by the party fund. (7) The publication had supported Sri Upadhaya as against the Con­gress candidate and lastly (8) the paper was dis­tributed by the appellant himself along with others. From the totality of these circumstances, it has been argued that the only legitimate inference which can be drawn is that the publication was with the consent of the appellant. (7) The publication had supported Sri Upadhaya as against the Con­gress candidate and lastly (8) the paper was dis­tributed by the appellant himself along with others. From the totality of these circumstances, it has been argued that the only legitimate inference which can be drawn is that the publication was with the consent of the appellant. We will have to examine the evidence on the record to see how far the facts stated above have been established by the evidence. The most important circumstance, in our opinion, is the distribution of the paper by the appellant himself. If this is established, it may be difficult for the appellant to argue that the publication was not with his consent. (His Lordship discussed the evidence of witnesses on this point and proceeded.) (22-25) On a careful consideration of the evi­dence which we have already discussed above, we are not inclined to accept the statement of these witnesses that they saw the appellant distributing the paper on the day previous to the polling. The fact that the paper was distributed by Matindra Bhattcherjee and the appellant has been denied by the appellant and Sri Bhattacherjee. If the story of the appellant himself distributing: the paper is disbelieved, then the other circumstances pointed out by the respondent cannot establish the consent of the appellant to the publication. It is therefore necessary to examine the other line of argument referred to above. In order to fasten the liability of the editor's act on the appellant, it is necessary to establish that the editor was acting as an agent of the appellant in connection with the elec­tion and that too with his consent. Mere action of the editor beneficial to the ap­pellant will not be enough to prove that he was acting as an agent in connection with appellant's election. Even if it is proved that he was acting as an agent, it is further to be proved that he was doing so with his consent. It was argued in this connection that the editor of the Jagaran was can­vassing for the leftist group. The paper was the organ of the leftist party. The petitioner had stood for the election as the candidate from the leftist party. It was argued in this connection that the editor of the Jagaran was can­vassing for the leftist group. The paper was the organ of the leftist party. The petitioner had stood for the election as the candidate from the leftist party. The leftist party was therefore the agent of the petitioner and the editor being the agent of the leftist party would also in the eye of law be the agent of the petitioner. (26) The question of agency depends upon the1 facts and circumstances of each case. No hard and fast rule can be laid down which will conclusively prove the agency. Willes J. in Windsor, 1 O. M. and H. 3 (B) had remarked that "a mere canvasser for the candidate is not the agent of the candidate unless he had authority to canvass." In the case of Londonderry, 1 O. M. and H. 276 at p. 278 (C) O. Brien J. remarked : "that he could not concur that any supporter of a candidate who chooses to ask others for their votes and to make speeches in his favour, can force himself upon the candidate as an agent." In the case of Taunton, Grove J. observed about agency as follows : ".............to establish agency for which the candidate would be responsible, he must be proved by himself or by his authorised agent to have em­ployed the persons whose conduct is impugned to act on his behalf, or to have to some extent put himself in their hands or to have made common cause with them, for the purpose of promoting his election. To what extent such relation may be suffi­cient to fix the candidate must, it seems to me, be a question of degree, and of evidence to be judged of by the election petition Tribunal." He further remarked in the same case that mere non­interference with persons, who, feeling interested in the success of the candidate, may act in support of his canvass is not sufficient to saddle the candi­date with any unlawful acts of theirs. In the case of Tamworth, Willes J., had remarked as follows : "No amount of evidence ought to induce a judi­cial tribunal to act upon mere suspicion or to ima­gine the existence of evidence which might have been given by the petitioner, but which he has not thought it to his interest actually to bring for­ward, and to act upon that evidence and not upon the evidence which really has been brought forward/' In the case of Mathai Mathew Manjuran v. K. C. Abraham, reported in 10 Election L. R. 376 (D), the Madras Tribunal held that where the Managing director of a newspaper was the President of the Provincial Congress Committee and the editor and publisher of it was a prominent Congressman, and the paper was actively canvassing for the Congress through its editorials, reports, circulars and adver­tisements and receiving donations from the Congress, these facts were not sufficient to make that news­paper or its editor an agent of the candidate put up by the Congress so as to make the candidate liable for the statements made in that paper. This case has also discussed the circumstances under which by reason of the relationship of the candidate and the association to which he belonged, the association of any of its members can be regarded as the agent of the candidate. In our opinion, broadly this decision has correctly laid down the law on the subject. In the light of these obser­vations, we will examine the evidence relied upon by the petitioner-respondent to show that the edi­tor of the Jagaran was the agent of the appellant with his consent and that the leftist group was the agent of the appellant and the editor of the Jagaran was the agent with the consent of the leftist party. That Jagaran is the organ of the leftist party and it was canvassing for the appellant is sought to be established by the testimony of (1) Ranendra Mohan 'Das, witness No. 1, - Abdul Bari, - W'tness No. 3 produced on behalf of the editor in the proceedings which were started after the issue of the notice against the editor of Jagaran to show cause as to why he shoulrt not be named and also the evidence of the appellant and Matindra Bhattacherjee. In connection with this evidence of Ranendra Mohan Das and Abdul Bari, the first question to be considered is whether their evidence can be relied upon by the petitioner to establish the fact of the appellant's consent and whether they should be regarded as witnesses for the appellant. At the conclusion of the proceedings, the Tribunal has to pass an order under Sec. 98 of the R. P. Act, either dismissing the petition or declaring the election of the returned candidate as void. At the same time, the Tribunal shall pass an order under Sec. 99 of the R. P. Act recording the names of all .persons if any, who have been proved at the trial to have been guilty of any corrupt practice, and the .nature of that practice. If such a man is not a party to the petition, he cannot be named unless he has been given a notice to appear before the Tribunal and to show cause why he should not be named. That such an 1 order has to be passed at the same time when an order under Sec. 98 of the Act is passed is clear from the reading of the two sections. It is however also clear from the perusal of these two sections that the notice itself has to be given under proviso to S. 99, only if on the materials at the conclusion of the trial, the Tribunal has formed an opinion that the corrupt practice has been committed by a person, other than the candidate himself. Any evidence, therefore, produced by the per­son who has been called upon to show cause as to why he should not be named, cannot be relied upon by the Tribunal to establish the consent of the returned candidate. The evidence is produced' by him to show cause why he should not be named, it is up to him to say that he has not committed the corrupt practice, but the burden on the peti­tioner to prove that the corrupt practice has been committed with the consent of the returned candi­date or by some one who was the agent of the re­turned candidate cannot be discharged by relying upon the evidence produced in the proceedings after the issue of notice under the proviso to Section 99. (His Lordship examined the evidence on the point and proceeded.) (27-320 The petitioner has therefore failed to establish that this paper was the organ of the leftist party. Even assuming that occasionally articles appeared in this paper in support of the leftist party candidates and in opposition of the Congress candi­dates, that by itself cannot lead to an inference that the paper was either the agent of the leftist party candidates or that the particular publication which is alleged to have constituted corrupt practice was published with the consent of the appellant. There is no evidence to show that the paper was financed by the leftist group and that it was authorised to canvass in whatever manner it liked for the appellant. It is also a misnomer to call the leftist group as a separate party which had a common fund, common band of workers, common organization and common ideological ties. It was a sort of loose combination of different parties with the sole object of defeating the Con­gress. To that extent they had a common objective. It may be that workers of one candidate belonging to one of the parties which was in the leftist group, worked for the other candidate belonging to another party in the leftist group so long as it did not in­terfere with his canvassing for his party's candidate; but that again does not make the leftist group as one party so as to make the acts of each of the workers, the act of the candidates of all the parties in the group. It cannot be inferred from this circumstance that there was a common fund for running the election of all the various candidates or that there was a common organization for running the election of all the leftist candidates in the whole of Assam. If a person happens to be the sympathiser of a candi­date, that will not lead to any inference of consent of the candidate for every one of his acts in con­nection with the election. The same argument applies to the circumstance pointed out by the respondent's counsel that the office of the leftist group was situated in the same building in which Sree Press was located. The same argument applies to the circumstance pointed out by the respondent's counsel that the office of the leftist group was situated in the same building in which Sree Press was located. This circumstance can only lead to the inference that the workers or the employees of the leftist office may have come to know the contents of the paper earlier; but no inference can be drawn that before publication, they had any knowledge that it was likely to be published. The location of the Sree Press in which the paper was printed in the same building in which the office of the leftist group was located is not a circumstance from which the consent of the ap­pellant to the publication can be inferred. (33) From the examination of the evidence, it is clear that the petitioner-respondent has not suc­ceeded in establishing the consent express or implied of the appellant for the act of publication which constitutes a corrupt practice. It was then argued that because Jagaran was the agent within the mean­ing of section 123 of the R. P. Act of the appel­lant, any act done by the Editor of the Jagaran will be attributable to the appellant. The agency, no doubt, under the Election Law, has been given wider meaning than the concept of agency in the Contract Act. But the mere act of publication of the article in favour of one of the candidates by the editor will not constitute agency even within the meaning of the explanation to Sec. 123 of the R. P. Act. The agency may be inferred even from the conduct of the person who acts for and on behalf of a candidate, but it has got to be distinguished from the mere expression of sympathy for the candidate by a paper on some occasions. We have already held that it has not been established that the appellant himself distributed the paper containing the imputation. It has also not been established that the leftist party employed the edi­tor of the paper for the purpose of canvassing for its candidates: much less it has been established that the appellant directly or indirectly employed the editor to carry on his propaganda in the paper. It has also not been established that the leftist party employed the edi­tor of the paper for the purpose of canvassing for its candidates: much less it has been established that the appellant directly or indirectly employed the editor to carry on his propaganda in the paper. The fact that his letter of resignation from the Congress was printed in that paper at an earlier stage does not show that the paper was employed by the appellant to do canvassing for him in the elec­tion. The leftist party, as we have already observed, was not a separate entity in the sense that it re­presented a common fund, a common organization and a common ideology of all the candidates belong­ing to the different parties who had combined to create an opposition front against the Congress. In the circumstances, it cannot be presumed, even admitting that the editor was doing propaganda for the leftist party, he was employed by the ap­pellant through the leftist party. There is no evi­dence produced by the respondent-petitioner to show occasions when the editor canvassed for the appel­lant. One solitary incident publishing an article praising the appellant and decrying the opponent will not establish canvassing of the editor for the appellant. Cases where a person is proved to have address­ed various meetings, approached the voters on several occasions in connection with the canvassing for a candidate and has been taking active interest in various other manners in the election of a candi­date, one may legitimately infer that he has been acting as an agent with the implied consent of the candidate, but the mere fact of publishing on one occasion a paper containing allegations in favour of a returned candidate & in the complete absence of any other evidence to show other occasions when he canvassed for him, will not establish the consent the returned candidate. It is true that the object of giving wider mean­ing to the word 'agency' in the election law is to maintain the purity of election. But there is no jurisdiction for giving a meaning to the word 'agent' which will make the returned candidate liable tor the acts of any person who may be a mere sym­pathiser of the candidate. It is true that the object of giving wider mean­ing to the word 'agency' in the election law is to maintain the purity of election. But there is no jurisdiction for giving a meaning to the word 'agent' which will make the returned candidate liable tor the acts of any person who may be a mere sym­pathiser of the candidate. In our opinion, therefore, the Jagaran cannot be regarded as the agent of the appellant and any publication by it will not constitute a corrupt prac­tice without any proof of the consent of the returned candidate. In this view of the matter, it is not neces­sary for us to examine the other contentions raised by the appellant that the publication does not come under Section 123 (4) of the R. P. Act, for the pur­pose of this appeal. The argument advanced by the appellant was that the allegations in the impugned article were neither proved to be false nor the editor had rea­sonable grounds to believe them to be false or had no reason to believe them to be true and that they are not the statements of facts in relation to the conduct of the opposite party No. 6. (34) Some of the allegations contained in the impugned article may be said to be mere expres­sions of opinion though expressed in a language which cannot be justified by any standard of jour­nalism. But some of the allegations contained there­in may as well be regarded as statements of facts. We however cannot help remarking that the burden! of proving that the statements contained in the article are false also lies on the petitioner. The scheme j of Sec. 123 (4) is that the petitioner has to prove i that the publication contains statement of fact and' not opinions which are false. Even if they are established as false, the person who publishes them can seek protection on the ground that he published them believing them to be true.' In this connection, it may be relevant to consider the question whether the person who published, made due enquiry about the truth or not. If it is established that he made no due enquiry, it may legitimately be inferred that he did not believe them to be true. If it is established that he made no due enquiry, it may legitimately be inferred that he did not believe them to be true. But the burden of proving that the statements were false is still on the petitioner and the whole matter would have been clinched if the respondent No. 6, against whom the facts have been alleged in the publication and which were within his personal knowledge would have come to the witness box to deny them. Cases where the petition itself to based on the ground that allegations have been made in relation to the conduct of the petitioner as a can­didate in the publication which amounts to corrupt practice, the courts would insist upon the petitioner coming to the witness box and denying the allega­tions made against him and his failure to do so may give rise to a presumption against him. No different standard can be laid down in the present case where the petition has been filed by an elector who also admits to be a worker of the Respon­dent No. 6 & has made a grievance against the appe­llant of the allegations made against the Respondent No. 6. In the written statement filed by respon­dent No. 6 before the Tribunal, he has only stated that the statements made in paras 1, 2, 3 and 4 of the petition were admitted and with reference Id the statements made in para 5 in the petition, h* has stated that Sri Upadhaya and respondent No. 2 Sri Gopesli Namasudra had themselves and through their agents and workers indulged in many illegal actions and committed breach of election rules which call for the setting aside of their election. It is further stated in the written statement that) in addition to the facts alleged by the petitioner in para 5, there were many other instances of illegali­ties and irregularities which have materially affected the election. This petitioner submits that the election held on 25-2-1957, at the Patherkandi constituency of the Assam Legislative Assembly had not been free and fair. Even in this written statement, there is no asser­tion that the allegations made in the publication which had already been known to him were false to the knowledge of Respondent No. 6. This petitioner submits that the election held on 25-2-1957, at the Patherkandi constituency of the Assam Legislative Assembly had not been free and fair. Even in this written statement, there is no asser­tion that the allegations made in the publication which had already been known to him were false to the knowledge of Respondent No. 6. Under these circumstances, the appellant could very legi­timately argue that the best evidence which would have proved falsity of the statements contained in the publication has not been produced by the peti­tioner. Mr. Ghose then tried to support the final order of the Tribunal by assailing the finding of the Tri­bunal that the results of the election of the returned candidate have not been materially affected by the improper acceptance of the nomination paper of Haramohan Ray. We have carefully considered the argument advanced by Mr. Ghose, but we have not been convinced of the correctness of his arguments. The Tribunal, in our opinion, has rightly come to the conclusion that the results have not been materially 'affected by the improper acceptance of the nomina­tion paper of Haramohan Ray. (35) In view of our decision however on the merits, we would a?Jow this appeal and set aside the order of the Tribunal and reject the petition filed by Respondent No. 1, challenging the election of the appellant with costs. The counsel fee, we assess at Rs. 400/-. (36) H. DEKA, J. : I agree. ORDER ON APPLICATION IN F. A. 53/57. (37) An application has been filed on behalf of the Printer and Publisher of the Jagaran Shri Nirmal Choudhury, praying that he be allowed to be impleaded as a respondent to the appeal. This Court had directed him to be impleaded as a party to the appeal subject to the objection of the main­tainability of the application at the time of the hear­ing. The application has been opposed and we see no ground to allow it. Proceedings under Sec. 99 were taken against the applicant and after inquiry, an order was passed by the Tribunal naming him. The order is appealable under S. I16-A. Under S. 119-A, the deposit of security along with the appeal is mandatory. The petitioner filed no appeal and he cannot be allowed to circumvent the provisions of appeal and obtain the relief by means of this application which he could have obtained by filing the appeal. The order is appealable under S. I16-A. Under S. 119-A, the deposit of security along with the appeal is mandatory. The petitioner filed no appeal and he cannot be allowed to circumvent the provisions of appeal and obtain the relief by means of this application which he could have obtained by filing the appeal. Moreover, even if he is allowed to be added as a party, he can only support the appeal or oppose it; but he will not be entitled to get any relief in his favour by way of setting aside the order passed against him in these proceedings. (38) The petition is therefore rejected, but without costs. V.R.B. Appeal allowed : Petition dismissed.